Tuesday, 31 March 2009

Iraq to execute prisoners because of the "crime" of being gay

Urgent action is needed to halt the execution of 128 prisoners on death row in Iraq. Many of those awaiting execution were convicted for the ‘crime’ of homosexuality, according to Iraqi-LGBT, a UK based organisation of Iraqis supporting gay, lesbian, bisexual and transgender people in Iraq.

According to Ali Hili of Iraqi-LGBT, the Iraqi authorities plan to start executing them in batches of 20 from this week.

For more of the story, click here.

Westpac gives married benefits to those in same sex marriages

Human Rights Commissioner Graeme Innes has twittered congratulations to Westpac on giving married employee benefits to people in same sex marriages.

Monday, 30 March 2009

Centrelink open to same sex registration from today

Senator Joe Ludwig
Same-sex couples receiving welfare payments can voluntarily declare their relationships to Centrelink from today, as the next step to equality for the gay and lesbian community begins.
Radio commercials and newspaper and magazine advertisements have also begun appearing today as the Government continues the consultation process ahead of the July 1 implementation of the historic same-sex reforms.
Minister for Human Services, Senator Joe Ludwig, said from 1 July 2009, Centrelink will treat same-sex relationships exactly the same as other relationships in determining eligibility for government assistance.


“The ‘Couples are Couples’ campaign aims to ensure those who might be affected by the new equality laws are aware of the changes and their potential impact,” Senator Ludwig said.
“For the first time, all couples will be treated equally in such areas as social security, tax, superannuation, health and aged care.”


The Minister also announced today changes to the names that appear on Centrelink concession cards.
“From July, any customer who would like a concession card reissued without their partner’s details will be able to do so,” Senator Ludwig said.
“Both cards will remain valid and can be used by the customers as they choose.”


“The Rudd Government is delivering on its important election commitment to provide equality of treatment between same-sex and opposite-sex couples.”
“Centrelink has established a dedicated inquiry line for the same-sex reforms and customers can call 13 6280 from today to declare their relationship.”
“Centrelink staff are well equipped to answer questions about how individual customer situations will be affected,” he said.
“For many customers it may be daunting declaring their relationship to Centrelink for the first time. Centrelink has professional staff who have undergone training to ensure they’re sensitive to the needs of all customers.”
For more information about the same-sex reforms Centrelink customers can visit http://www.centrelink.gov.au/ or call 13 6280.
For information about the broader Federal Government reforms visit www.ag.gov.au/samesexreform.


Source: Ministerial media release

World LGBT blackspots

Craig Young on gaynz.com has written on world LGBT blackspots. These include:


  • Nigeria has imposed draconian penalties against same-sex marriage.
  • Uganda's Christian Right is advocating legalised psychiatric abuse of lesbians and gay men, forced to submit to charlatan 'exgay therapy.'
  • Brazil's military and paramilitary groups engage in 'social cleansing' against urban poor gay men and transsexuals in its favelas.
  • Jamaica's ragga industry continues to churn out homophobic lyrics that encourage homophobic violence and homicide.
  • Shia paramilitary militia prowl the streets of Baghdad and either abduct or murder lesbians and gay men.
  • Iran's government orders flogging and execution of LGBT Iranians.

As he points out:

Most of the above natures have compound injustices and inequalities festering
inside them. Most have had lamentable histories of democratic instability,
marked by intertribal, ethnic minority and sectarian religious violence and
civil war, and long periods of military dictatorship and/or brutal government
corruption. Independent trade unions, liberal religious organisations and any
permissible opposition movements are also subjected to harrassment, violence and
homicide. There are negligible levels of higher education and/or professional
middle-class employment prospects, either.

In other words, where there has been democracy, it has not been true democracy part of which involves a protection of minority rights.

International organisations that are seeking to remove this discrimination are:

For a map of world LGBT legal rights, click here.

Sunday, 29 March 2009

St Mary's to go into exile

Rebel priest Father Peter Kennedy, who was sacked by Brisbane Archbishop John Bathersby from St Mary's parish in inner city Brisbane because he did not follow the liturgical line, has decided to go out in exile.





Where is he going? About 100 metres away! To the ACT Queensland Headquarters (also the home of the ALP in Queensland).





Father Kennedy's unorthodox style resulted in a packed congregation, but complaints within the Church. After being spied upon by those who wanted to ensure a pure doctrinal line, and having those reports sent back to the Vatican, Bathersby had little choice but to follow through. Bathersby sacked Father Kennedy, who refused to go. The Church brought in retired High Court judge Ian Callinan as mediator, but after St Mary's Council refused to negotiate whether Father Kennedy ought to go, but how, meaning that the St Mary's church council refused initially to participate.





Mediation has now happened, and Father Kennedy is due to leave after Easter.





Part of the complaint was that Father Kennedy, 71, had celebrated gay unions.





St Mary's has the red roof at the left bottom corner of the photo, the new location is at the top right corner.


View Larger Map

Human Rights review: submissions asked from LGBT community

Currently the human rights review chaired by Frank Brennan is touring the country. It has been put to me forcefully, for example by Dr Alan Berman, that LGBT people ought to be engaged in the process and advocate for a bill of rights or a charter of rights, because LGBT people have been and continue to be discriminated against.

In the last few days I received an email from "Alanah" which I set out below. It speaks for itself.

Alanah's email

Hello,

The Human Rights Commission is currently taking submissions for human rights needs. They compile and refer these submissions to the federal government for possible law amendments.
The GLBTI community needs to have their voices heard.

I am asking that you ask each member to submit a submission saying the current marriage laws contravene anti-discrimination laws (treating a person less favourably based on their sexuality) and deny a large portion of Australians access to a basic human right (the right to get married).
Please have your members reiterate that we are not asking for access to religious ceremonies, we are asking for the basic legal right to have an authorised, recognised, legal marriage.
Marriage is a basic human right, and it is discriminatory to exclude access to this on the basis of sexuality.

We need as many submissions as we can get in order to have our voices heard.This is an excellent opportunity. Submissions do not need to be long or professionally written (can be a paragraph).

They are due by the 15th of June and can be written and submitted via this website:
https://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/HaveYourSay_SubmissionForm
Thank-you.
Regards,
Alana

Catholic Church to test for "gayness" in candidate priests

Candidates for priesthood in Melbourne are to be "tested" to determine whether they are gay, in accordance with Vatican rules, according to the Herald-Sun. Priests who appear to be gay, including those who are celibate, will be banned.

They can't marry there,but they can be on the birth certificate

New York's Board of Health has voted to allow married lesbian couples, who cannot marry in New York state, to be listed as parents on the birth certificate, according to NY1.

Gay couples on the other hand can only be recognised as parents if they both adopt.

Saturday, 28 March 2009

Vermont: Governor to veto same sex bill

The Republican Governor of Vermont has said that he will veto the same sex marriage bill.

For more, click here.

Friday, 27 March 2009

New Hampshire, Vermont, Maine move to marriage equality

Today, the New Hampshire House of Representatives voted 186 to 179 in favor of a marriage equality bill.



Last week, a bill for anti-discrimination for gender identity and expression was voted out of committee and sent to the full House, while six anti-gay bills were defeated in committee. For more information: New Hampshire Freedom to Marry



Vermont may be the next US state to provide gay and lesbian couples with marriage equality under state law, with Vermont Freedom to Marry (which is providing videos of the hearings) leading the grassroots effort. This week, the Vermont State Senate voted 26 out of 30 to pass a bill to legalize same-sex marriage. The House will vote on as early as next week.



In Maine, sixty legislators signed on as co-sponsors of a marriage equality bill which, if passed would make Maine the third New England state with marriage equality, following Massachusetts and Connecticut. Equality Maine has the latest information on the bill

UK: 1 in 6 psychiatrists, psychologists "helping" patients convert

A study[PDF] published in the British Medical Council Psychiatry Journal says that 1 in 6 of psychiatrists and psychologists surveyed have attempted to "cure" patients of homosexuality.
The reasons given for the client seeking help could be summarised as:
· confusion about sexual orientation (236, 57%)
· social pressures including the family (59, 14%)
· mental health difficulties (45, 11%)
· religious beliefs (28, 7%)
· gender confusion (15,4%)
· legal pressures (14, 4%)
· heterosexual relationship difficulties (9, 2%)
· as victims of abusive relationships (8, 2%).

Comments by those surveyed include:

  • “The individuals I have worked with have all been very unhappy about their sexuality and wish they were heterosexual. This has been because of responses from friends, family and the local community – which outside London is still very homophobic.”
  • “If after extensive, good therapy they were still adamant they wanted to change, I would think this was their decision though I would hope they would come to terms with themselves on the journey.”
  • “We have a responsibility to assist our patients with self-determination.”
  • “Some bisexual individuals may wish to choose an orientation that is comfortable for them and their lifestyle choices for example. This is a therapeutic issue to explore and support if that is their wish. It is different from behavioural attempts to reshape desire.”
  • “People should be given the opportunity to choose to redirect their sexual feelings depending on their circumstances. For example the homosexual man I helped to become heterosexual came from a working class background where it was completely unacceptable to deviate from the norm. It was extremely important to him to be accepted by that community.”

A very small number of those advocating intervention in this area had
Clearly negative views about same sex relationships:

Although homosexual feelings are usual in people, their physical
expression, and being a person’s only way of having sexual relations is
problematic. The physical act for male homosexuals is physically damaging and
is the main reason in this country for AIDS/HIV. It is also perverse……….



Asking therapists whether or not they would attempt to change a client’s sexual orientation if requested, yielded very few (4%) who say they would do so. However, when asked about specific instances in the past, 17% of therapists reported having treated at least one patient in order to
change their sexual orientation from homosexual to heterosexual and there was no sign of a decline of such treatments in recent years. Older male therapists …..were more likely to have done so. One third of clients treated were women, just over half were treated in private practice and most received some form of counselling. Beyond providing counselling, there appeared to be no consistent approach to treatment. Three quarters of these therapists considered that a service should be provided for gay and lesbian people who wanted to become heterosexual.

The researchers expressed surprise that this therapy was used, because it of dubious effectiveness:

There is no evidence from the published literature to suggest that a
person’s
sexual orientation can be changed from homosexual to heterosexual.
Earlier
forms of both psychoanalytic and behavioural research showed no
evidence
of efficacy and many therapists later regretted their
involvement in such
treatments.

Furthermore, recent
research into the effectiveness of socalled
reparative therapy to change
sexual orientation in the United States
has demonstrated little evidence of
efficacy and considerable
controversy about the quality of the methods used.
All have been post hoc
evaluations of volunteers, often some years after
receipt of treatment. All fall
well short of the quality guidelines for
outcome research. Furthermore, the
American Psychiatric Association is
directly opposed to ‘any psychiatric
treatment, such as "reparative" or
conversion therapy, which is based upon
the assumption that homosexuality per
se is a mental disorder or based upon
the a priori assumption that a patient
should change his/her sexual
homosexual orientation’.

Wednesday, 25 March 2009

Men's work/ women's work: who does more?

The Australian Bureau of Statistics has released interesting research showing that women do most of the household work, men do most of the paid work, and overall they balance up.Here are some extracts(with highlights):

Between 1992 and 2006, the proportion of women who were employed increased from 48% to 55%. This led to an increase in the average time women spent on paid work, by an hour and 45 minutes, to an average of 16 hours and 25 minutes a week. This is much lower than a 'standard' working week due to the number of women who are either not employed or employed part-time.

While women were assuming a greater role in the workplace, they did not compensate by reducing work around the home. Women spent around the same amount of time on household work (which includes caring for children as well as domestic activities and shopping) in 2006 (an average of 33 hours and 45 minutes a week) as they had in 1992.Over the same period, men took on more household work.

Between 1992 and 2006, the average time men spent on household work rose by an hour and 25 minutes to 18 hours and 20 minutes a week. The time men spent in paid work remained steady at an average of around 31 hours and 50 minutes a week. In 2006 women still did around two-thirds of household work, while men did two-thirds of paid work. In terms of total workload, both men and women spent an average of 50 hours and 10 minutes a week in a combination of paid work and household work.Although different gender roles are apparent in the division of household work (with women doing most of the indoor tasks and men dominating the outdoor activities) there is evidence that these roles have become less rigid in recent years.

In 2006 men were spending more time on traditionally 'female' domestic activities such as cooking and laundry than in 1992, and less time on outdoor activities such as lawn mowing, and home maintenance.As women, on average, increased the time spent in paid work between 1992 and 2006, the average time spent on domestic activities by women declined, particularly laundry and ironing, and other housework such as cleaning. However, this was partly offset by an increase in time spent on household management activities such as paying bills.

Women also spent more time on other household work such as child care, so that the time spent on household work overall did not change significantly.While men are doing slightly more household work than in the past, in 2006 women still did around 1.8 times as much as men (compared with twice as much in 1992). Although women are spending less time cleaning and doing laundry, they still spent almost six times as long on laundry as men in 2006, and more than three times as long on other housework such as cleaning. Women also spent almost two and a half times as long on food preparation and clean up, despite men doing more of the cooking than in the past.While men are taking on a greater role with respect to child care than in the past, women on average spent more than two and a half times as long caring for children as men did in 2006. There were also differences in the type of child care activities parents did, with fathers spending a greater proportion of their child care time on play activities (41% compared with 25% for mothers), and mothers spending more of their time on physical and emotional care activities (43%, compared with 27% for fathers).

Statistics: couple relationships

The Australian Bureau of Statistics has released interesting research about same sex couples.
Here are some extracts:

The number of people living in a same-sex couple relationship has ... increased over the past decade. In 1996, 0.2% of all adults said they were living with a same-sex partner. By 2006, this had increased to 0.4% (to around 50,000 people). However, these figures may be an undercount of the true number of people living in same-sex relationships. Some people may be reluctant to identify as being in a same-sex relationship, while others may not have identified because they didn't know that same-sex relationships would be counted in the census....

In same-sex relationships, the average age difference (between partners) was 1.5 years

Changes in social attitudes in recent decades have led to greater acceptance of couple relationships outside of registered marriage, such as de facto and same-sex relationships. At the same time, broader social, economic and educational opportunities have become more accessible to most people (particularly women), which has made remaining single a more viable option.

Thursday, 19 March 2009

Dictionaries include same sex marriage as a form of marriage

The Silicon Valley Mercury News reports that three leading dictionaries have included, as secondary definitions, the definition of same sex marriage as part of the definition of "marriage":

  • The Oxford English Dictionary
  • The Webster
  • The American Heritage Dictionary

For more, click here.

US endorses end to criminalisation of homosexuality

The US has joined Australia and other countries in adopting the UN position of there being a ban on the criminalisation of homosexual acts.

The Obama administration on Wednesday formally endorsed the U.N. statement calling for the worldwide decriminalization of homosexuality, a measure that former President George W. Bush had refused to sign.

For more, see here.

US: Iowa - moves to define marriage as only between a man and a woman

In the US State of Iowa, legislators are seeking to alter the constitution so that "marriage" is defined as only being between a man and a woman. For more, see the Iowa Independent article here.

Wednesday, 18 March 2009

The Larapinta-Uluru Trek for Family Peace 3-8 September 2009


As a director of the non-profit Australia's CEO Challenge, I am thrilled that CEO Challenge is organising the Larapinta-Uluru Trek for Family Peace. Limited to 15 places only, the trek is in one of the most remote and beautiful parts of Australia and will help make a world where women and children are safe and free.The picture above is of the Olga Gorge. Although everyone mentions that they have been to Uluru, the Olgas or Kata Tjuta is (in my opinion anyway) much more spectacular. I had expected that the Olgas were made of the same kind of rock, a red sandstone, as Uluru. Not so. I was struck when I walked through this gorge about how the walls were a type of conglomerate- a beautiful form of natural concrete, which surround and envelope you. To be there is to know that you are in one of the unique places on Earth.
YOUR MONEY CAN HELP:
  • Save the life of a young mum and her child when she attends one of CEO Challenge's employee seminars and understands the concepts of control and power,and recognises the warning signs of violence ($1 a day).
  • Create a toy and book library for children who have left their beloved toys and books behind when their mother sought refuge from a violent relationship in a shelter aided by CEO Challenge ($100).
  • Stop a man raising his hand to his wife or children after attending one of CEO Challenge's seminars or workshops ($500).
  • Provide a shaded area for kids to play at a refuge providing shelter formothers and their children.


HOW DOES IT WORK?

1. Register to secure your place ($700 non-refundable fee)

2. Create your fundraising plan — Australia’s CEO Challenge & InspiredAdventures will help you every step of the way

3. Start fundraising to reach your goal of $4,000 (flights not included).Trip costs = $2,840 + $1,260 minimum to Australia’s CEO Challenge

4. Get fit for your challenge

5. Australia’s CEO Challenge receives the funds you raised (minus the tripcosts) and the money makes a real difference to family lives

6. You have the adventure of a lifetime


FAST FACTS

Fundraising Target: $4,000 (flights not included)
Registration Fee: $700 (non-refundable, not part of fundraising)
Duration: 6 days
Trek Duration: 4 days
Physical Rating: Moderate to Challenging
Accommodation: Hotels & Comfortable Outback Camping
For more, click here.

Tuesday, 17 March 2009

Qld election: LGBT Election Forum: Wednesday night

Meet the candidates and hear their positions on lesbian, gay, bisexual and transgender issues at a special LGBT community Election Forum tomorrow night, 18th March.

The forum, stating at 6:30pm sharp at the Sportsman Hotel in Spring Hill, Brisbane will bring together candidates in the electorate of Brisbane Central. Grace Grace, sitting member for the Australian Labor Party and Mark Wood, candidate for the Liberal National Party will be speaking about their positions and answering your questions. (No response to the invitation has been received from the Greens candidate to date).

Rod Goodbun from ARCQ (Action Reform Change Queensland) will host the event. The forum is being organised by the ‘Queer Coalition’, a Brisbane-based network of groups and individuals working to promote LGBT rights. Queer Coalition meets at 6pm on the second Wednesday of each month at the offices of QAHC, 30 Helen Street, Newstead. Dinner is available from the bistro from 6pm to 9pm and the bar will be open (followed by karaoke at 8pm).For more information contact Paul Martin at pmartin@qahc.org.au or 3017 1791 or Russell Flynn on 0424541084

Monday, 16 March 2009

Lesbians raped as a "cure"

News Ltd is reporting that in South Africa, where almost half of all women can expect to be raped in their lifetime, men are committing so-called "corrective" rape, to "cure" lesbians.

Other scary stats include that 500,000 women are raped each year, and only 1 in 25 men brought to trial for rape are convicted (let alone those not charged).

US: Vermont moving to same sex marriage, away from civil unions

In the US State of Vermont, there are moves among legislators to dump civil unions in place of same sex marriage. Civil unions have been in place in Vermont since 2000. The move is expected to pass later this year.

Sunday, 15 March 2009

Same sex changes to take effect today

Previously passed same sex changes take effect today. The changes remove discrimination against same sex couples, although conversely mean that for same sex couples who have both been claiming Centrelink benefits, there will likely be a reduction in benefits, as their relationships are now recognised.

The changes include changes to Medicare, tax, Centrelink and immigration. They represent the carrying out of promises by the ALP before the last election. Altogether 84 pieces of legislation have been changed.

The list of huge changes is here.

Citizenship and Immigration Changes- Removal of Discrimination

With the changes to remove discrimination against same sex couples taking effect today, it is interesting to see the specific changes that impact on immigration and citizenship.

I was alerted to these by a colleague, Adam Welch, a prominent immigration lawyer. Thank you, Adam.

Citizenship Changes

Amendments to the Australian Citizenship Act 2007 to remove discrimination against same-sex de facto couples and their children
15 March 2009 Legislation Change
Client summary
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 (the Amending Act) amends the Australian Citizenship Act 2007 (the Act). The Amending Act received Royal Assent on 9 December 2008. Part 1 of Schedule 10 to the Amending Act will commence by proclamation on 15 March 2009.
The Amending Act amends the Act to remove discrimination between same-sex and opposite-sex de facto couples, and their children.
Affected legislation
The following provisions of the Act are amended:
Section 3
Section 6
Section 8
Subsection 22(9)
Subsection 22(10)
Additional information:
Under the amendments, married couples and de facto couples (whether of the same-sex or opposite-sex) will be recognised as the parents of the child(ren) that they have had as a result of artificial conception procedures with the use of donated genetic material or through a surrogacy arrangement under a prescribed State or Territory law (both as recognised under the Family Law Act 1975). Such parents will additionally be recognised as ‘responsible parents’ of their child(ren). Amendments will also provide parity between same-sex and opposite-sex de facto couples in accessing the residence discretion to count time spent outside Australia as time spent in Australia in meeting the residence requirement for Australian citizenship by conferral.
Application of the new provisions:
Application of amendments affecting sections 3, 6 and 8The amendments affecting sections 3, 6 and 8 of the Act apply in relation to the acquisition or cessation of Australian citizenship on or after 15 March 2009 because of circumstances (including relationships) existing before, on or after 15 March 2009.
Application of amendments of section 22The amendments of section 22 of the Act apply in relation to applications to become an Australian citizen:
that are made on or after 15 March 2009; or
that:
were made before 15 March 2009; and
were applications in relation to which decisions were not made before 15 March 2009 to approve, or to refuse to approve, the applicants becoming Australian citizens.
Forms: The following forms will be affected:
Form 1299i – How to apply for Australian citizenship by conferral.
Instructions: Chapters 1, 3 and 5 of the Australian Citizenship Instructions will be amended to take effect on 15 March 2009, when the legislative changes take effect.

Amendments concerning children

Amendments to the Immigration (Guardianship of Children) Act 1946 to remove discrimination against same-sex de facto couples and their children
15 March 2009 Legislation Change
Client summary
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 (the Amending Act) amends the Immigration (Guardianship of Children) Act 1946 (the Act). The Amending Act received Royal Assent on 9 December 2008. Part 4 of Schedule 10 to the Amending Act will commence by proclamation on 15 March 2009.
The Amending Act amends the Act to remove discrimination between same-sex and opposite-sex de facto couples, and their children.
Affected legislation
The following provisions of the Act are amended:
Section 4
Section 6
Additional information:
The Act provides for an unaccompanied minor entering Australia to have a legal guardian in Australia. The amendments to the Act will enable de facto couples, whether same-sex or opposite-sex, and married couples, who have children as a result of artificial conception procedures with the use of donated genetic material or through a surrogacy arrangement under a prescribed State or Territory law (both as recognised under the Family Law Act 1975), to be recognised as the parents of the non-citizen minor. These amendments also provide for relatives of the minor to include those who would be relatives if they were married to the minor’s blood relatives but who are instead in a de facto relationship with the minor’s blood relative (including a same-sex de facto relationship).
Application of the new provisions:
The amendments apply in relation to persons under 18 who enter Australia on or after 15 March 2009.
Forms: The following form will be affected:
Form 1258 - Agreement to undertake care of an unaccompanied humanitarian minor.
Instructions: PAM3: Immigration (Guardianship of Children) – I(GOC) will be amended to reflect these changes.

Wednesday, 11 March 2009

US gay/lesbian notes update

The New York Law School has updated its gay/lesbian law notes, which detail a series of current cases in the US. To go to the current version, click here [PDF].

Tuesday, 10 March 2009

FMC: who is a "parent" under s.60H of the Family Law Act?

In the recent Federal Magistrates Court case of Keaton and Aldridge, the court had to consider who was a "parent" within the meaning of s.60H of the Family Law Act.

The issue was relevant because Ms Keaton and Ms Aldridge were in a lesbian relationship, and then split up. Ms Aldridge had had a child through artificial conception procedures. The issues before the court included as to whether Ms Keaton was, as she contended, a parent of the child, and whether Ms Aldridge and Ms Keaton were, as Ms Keaton contended, in a de facto relationship.

The issue of when they were in a de facto relationship was important- if the requirement was that they needed to be in a de facto relationship as the time of conception, then Ms Keaton may not be a parent as they may not have been not living together; but if it were at the time of birth, then she would be a parent because by that time they were living together

Section 60H of the Family Law Act

As Chief Federal Magistrate Pascoe found, although the changes to the Family Law Act resulting in the de facto matters took effect this year [ on 1 March] , the change to section 60H occurred on 21 November 2008. This was even though they were in the same piece of legislation.

The relevant part of s.60H provides:

(1) If:
(a) a child is born to a woman as a result of the carrying out
of an artificial conception procedure while the woman was married to, or a de
facto partner of, another person (the other intended parent); and
(b)
either:
(i) the woman and the other intended parent consented to the
carrying out of the procedure, and any other person who provided genetic
material used in the procedure consented to the use of the material in an
artificial conception procedure; or
(ii) under a prescribed law of the
Commonwealth or of a State or Territory, the child is a child of the woman and
of the other intended parent;
then, whether or not the child is biologically
a child of the woman and of the other intended parent, for the purposes of this
Act:
(c) the child is the child of the woman and of the other intended
parent; and
(d) if a person other than the woman and the other intended
parent provided genetic material–the child is not the child of that person.

De facto relationship?

Pascoe CFM stated:


The applicant argued that the language of the section is ambiguous as to
whether the existence of the de facto relationship must be at the time of birth
or at the time of the artificial conception procedure and stated:
Absent the
commas, is it the born while the woman was a de facto partner, or a procedure
while the woman was a de facto partner? I think it’s open to either
interpretation. We would say, of course, it doesn’t matter because both apply.
But I don’t think it would be correct to say to your Honour that the only
interpretation that is available is that the relevant time is the time of the
conception.
I cannot agree with this interpretation. On a plain reading of
the words in s.60H(1)(a) it is quite clear that the phrase “while the woman was
married to, or a de facto partner of, another person” and in particular the term
‘while’ qualifies the phrase immediately before it which is “the carrying out of
an artificial conception procedure”. Therefore it is quite plain on the face of
the statute that the relevant time ‘the woman’ must be a ‘de facto partner’ of
another person is at the time the artificial insemination procedure is carried
out. There is no comma which separates the clause and on a literal reading of
the section I am not willing to impute any different meaning....
In fact, the literal reading which requires the de facto relationship to be
in effect at the time the artificial conception procedure is carried out is
consistent with what the section sets out to achieve. The provisions aim is to
establish a parent-child relationship between the child and the women who gave
birth to that child and her husband or de facto partner, even though another man
or women might be the biological parent of that child. Its overall purpose is to
place those couples who intend to be parents of a child through artificial
conception in the same position as parents who have children through more
traditional means....

In my opinion, the legislation prescribes that the relevant time at
which the de facto relationship must be found to exist is the time of the
artificial conception procedure. In this case the procedure which led to the
child being conceived was performed in April 2005 and I find that this is the
relevant date at which a de facto relationship must be found to exist if the
requirements of s.60H(1)
are to be satisfied.

Was there a de facto relationship at the time of conception?

Pascoe CFM went through the checklist of matters as to whether or not at the time of conception there had been a de facto relationship, concluding that there had not been:

Without the ‘solemnities and formalities’ by which some hetero-sexual
couples declare that relationship in marriage, same-sex relationships are fluid
in the sense that it is difficult for them to discern what, if any,
circumstances will carry them across an invisible threshold to be a relationship
recognised by law.
One of the most important factors in determining whether
the parties in this case crossed that threshold relates to their commitment to
raising a child together.
Although the parties participated in the fertility
clinic program as a couple, and the applicant’s witnesses were of the view that
they were having a child together, I do not regard this as evidence of a mutual
commitment to a shared life together because of the evidence, which I accept,
that the applicant’s role in the child’s life had not been determined and was,
as she deposed a matter for the respondent to decide. The evidence demonstrates
that one of the main motivations for having a child was so that the respondent
would enjoy the experience of motherhood, and not because the parties wanted to
have a child and raise it together. The applicant was there to support the
respondent and it was up to the respondent to decide the applicant’s role in the
child’s life. No decision had been made as to the role the applicant would have
in the child’s life at the time the respondent underwent the procedure.
I
also place weight on the fact that the parties did not live together, but had
two separate residences. When the parties did move in together it was through
circumstance and not a desire to live under the same roof. The evidence also
made it clear that the parties did not consider each others home to be theirs
jointly. I have had regard to the fact the parties spent most nights of the week
together at one or the other’s residence and in a way that suited them;
Greenwood v Merkel (2004)
31 Fam LR 571
; [2004]
NSWSC 43.
However, the independent nature of their relationship carried
through to other aspects including, finances, property and possessions and to
basic chores around the house including cooking and cleaning.
I find that
the relationship lasted from September 2001 through to November 2006 and
although the relationship may have taken on different forms throughout this
timeframe, the parties remained committed to a relationship of some nature
throughout the whole time. Although the parties represented to the world that
they were a couple, I find that it was not in April 2005 a de facto relationship
as required by the legislation.
I find their living arrangements in April
2005, combined with all the other circumstances do not constitute ‘living
together on a genuine domestic basis’. The parties demonstrated a large degree
of independence in almost all aspects of their relationship. Accordingly, I find
that the parties were not in a de facto relationship at the time of April 2005
and consequently that s.60H(1)(a) is not satisfied....

As the parties were not in a de facto relationship for the purposes of
s.60H(1)(a), I find that the applicant is not a parent of the child under
s.60H(1) of the Act.

Someone concerned with the care, welfare or development of the child?

Although not a parent, Pascoe CFM held that Ms Keaton was a person concerned with the care, welfare or development of the child and could therefore bring her application.

Sunday, 8 March 2009

California: Looks like Prop 8 will be upheld

Having had the benefit of watching the oral arguments in the California Supreme Court in the challenge to Proposition 8, the amendment to the California constitution banning same sex marriage, it seems pretty clear to me that the California Supreme Court is likely to uphold Proposition 8, as being a fundamental right of the people to overturn decisions of the courts.

Chief Justice George and Justice Kennard , two of the majority of 4-3 in the California Marriage Case, which upheld the right to marry as a fundamental right in California, hinted strongly that Proposition 8 should be upheld. Justice Kennard suggested as to the argument that the majority should of course uphold the invalidity of Proposition 8, because of the earlier decision of the California marriage case: "I don't see it that way".

Justice Kennard, who repeatedly made reference to the "14 words" of Proposition 8, seemed to question whether Proposition 8 invalidated the 18,000 same sex marriages that occurred between the decision int he California Marriage Case and the passing of Proposition 8.

It seems that the commentary of most observers is the same as mine.

Warning: the video of the coverage is very long (over 3 hours), and there is a 15 minute blurb at the beginning about the California Supreme Court.

Friday, 6 March 2009

US Law Association supports LGBT migration equality

The world's richest and most powerful lawyers' group, the American Bar Association, has for the first time adopted a resolution for multinational LGBT rights- so that same sex partners will be able to migrate to the US.

Here is the resolution:

RESOLVED, That the American Bar Association supports the enactment of legislation and the implementation of public policy to enable a United States citizen or lawful permanent resident who:
(1) shares a committed, intimate relationship with another adult individual of the same-sex;
(2) is not married to or in any other legally-recognized partnership with anyone other than that individual; and
(3) is unable to enter into a marriage with that other individual that is cognizable under the Immigration and Nationality Act, to sponsor that individual for permanent residence in the United States.

Thursday, 5 March 2009

Same sex people need human rights protection: law lecturer

Dr Alan Berman, who has been funded by the Queensland Government to research homophobia in Queensland, spoke recently at the Anti-Discrimination Commission of Queensland about the benefits for LGBTI people in having a charter of rights.
Dr Berman said that a charter of rights will help protect LGBTI people, when they receive only limited protection under the laws currently.
He would prefer a Bill of Rights, but as well as being a theorist, he was a realist, and to obtain a Bill of Rights would mean a constitutional amendment. Given that most referendum proposals, including previous modest attempts to protect human rights, were defeated this was a tall order, so a charter of rights, which would just need to pass both houses of parliament is the next best option.
Dr Berman urged those present to attend and tell their stories to the human rights inquiry led by Frank Brennan.

Federal Court : husband and wife are not refugees

I've said it before, and I'll say it again, if you are going to claim that you are a refugee due to your sexual orientation, come up with clear convincing evidence.

This was not the case in SZMNV v Minister for Immigration and Citizenship, where the wife claimed refugee status because she was a lesbian and would therefore be persecuted in India, and the husband claimed refugee status because:

of his marriage to a lesbian which would cause problems for him if returned to
India.


The claim had been rejected within the Department, then by the Refugee Review Tribunal and then by the Federal Magistrates Court before finally reaching the Federal Court. The appeals by the husband and wife were consistently rejected.

When the matter came before the Tribunal:


The Tribunal referred to an earlier Tribunal hearing concerning the
appellants’ claims and evidence given to that Tribunal member. It found
inconsistencies between the information given in their initial application for
protection visas, their evidence to the previous Tribunal and information
provided in their subsequent visa applications dealt with by the
delegate....
(T)he Tribunal said:
...it is highly improbable that
the first named applicant would not have been reasonably able to outline her
claims relating to her sexual orientation in the initial application if she had
in fact experienced harm in India, or had a fear of being persecuted if she
returned, on the basis of her sexual orientation.
The initial claim referred
to being forced into a child marriage rather than the appellant wife’s sexual
orientation.
The Tribunal found difficulty accepting certain aspects of the
appellant wife’s evidence concerning why she did not obtain a divorce until not
long before coming to Australia. It doubted the veracity of that evidence. It
also found that the appellant husband gave inconsistent evidence about his
attitude to his wife’s sexual orientation, divorce and their continuing
marriage. It doubted the veracity of his evidence. It also doubted evidence of
the appellant wife concerning beatings which she claimed happened to her at the
hands of a lover’s father and the appellant husband. Overall, the Tribunal had
serious doubts about the truthfulness of the evidence of the appellants
concerning the appellant wife’s circumstances in India. It also doubted the
genuineness of photographs taken of the appellant wife in engaging in sexual
acts with another female and considered that conduct to fall within s 91R(3)
of the Act. [ie creation of evidence to make their case stronger]
The
Tribunal catalogued a series of concerns it had about the evidence of the
appellants and their credibility on a range of issues, including:
the date
of the marriage;
residential addresses in India;
employment of the
appellant husband;
travel outside India before coming to Australia;
delay in travel to Australia after obtaining a visa.
The Tribunal
considered what it described as “implied claims on behalf of applicant spouse”.
These “implied claims”, it was said, arose from the husband appellant’s alleged
suffering of humiliation and harassment because he is married to a lesbian. The
Tribunal rejected those “implied claims” as it did not accept the husband
appellant as a truthful witness.

The Tribunal rejected the claims of both appellants to be
refugees.

Wednesday, 4 March 2009

Prop 8: California Supreme Court to hear submissions

The California Supreme Court will hear arguments Friday our time on the legal challenge to Proposition 8, the referendum question which outlawed same sex marriage.

The arguments will be able to be heard on the web on the California channel.

Sunday, 1 March 2009

De facto changes start today

Changes to the Family Law Act start today to enable de facto couples (including same sex couples) to obtain property settlement rights in the Family Court and Federal Magistrates Court.

The changes apply in all states and territories except Western Australia and South Australia, but even there they apply to a limited degree.